Prophet Ifeanyi Emeagwara v. Star Printing and Publishing Company Limited & Ors

I read and discussed at length the draft of the judgment of my learned brother, Kalgo JSC, with which I am in full agreement. For the reasons extensively set out in the judgment, which I adopt, I also dismiss this appeal as totally lacking in merit. I award N10,000.00 as costs in favour of respondents against the appellant.

I have had a preview of the judgment just delivered by my learned brother Kalgo, JSC. I agree with the reasoning and conclusions contained therein.
The plaintiff, who is the appellant in this court submitted the following issues for our determination in the appeal:
(a) Whether or not the publication in the Daily Star Newspaper of 18-1-88 is a fair and accurate report of judicial proceedings so as to avail the defendants of the defence of qualified privilege.
(b) Whether or not the publication was malicious having regard to all the circumstances of its publication and whether malice has been established.”

P.8

The alleged publication which is set out in paragraph 5 of the statement of claim reads:-
“A Jos Chief Magistrate Court has heard that a Prophet with the “Christ Bible Mission”, Nassarawa-Gwom, Jos, allegedly removed pubic hairs and finger nails of a lady adherent of the mission, in a pretext to pray for her with those materials.
The Prophet, Ifeanyi Emeagwara, who is now standing trial before the court on a charge of indecent assault allegedly committed the offence between May and June, last year, according to the prosecution.
Said the prosecuting police officer, Sergeant Kujiral Audu: The accused lured Miss Patricia Ogbonna into one of the rooms in the Church, and began to rub her private parts with an oil.
Consequently, the accused began to remove the hairs in the girl’s private region and later cut her finger nails.
Thereafter, the prosecution told the court Miss Patricia Ogbonna of No.8 Maichibi Street, Jos reported the matter to the Police. The offence, the prosecution told the court, was contrary to Section 268 of the Penal Code. Ifeanyi pleaded not guilty and the Magistrate, Mr. Pius Damulak, adjourned for further hearing”.
The First Information Report which was read in the Chief Magistrate ‘s Court on 22-12-87 reads in part:
“Nature of Information: Assault on a woman with intent to outrage her modesty: On the 14-12-87 at about 0800hrs, One Miss Rose Otwanye ‘F’ of No. 8 Maichibi Street, Jos, came to ‘C’ Division Police Station, Jos, and reported that sometimes (sic) last year 1987 between the months of May and June, one Prophet Ifeanyi O. Emeagwara invited her in a private room in the Church and started cutting her private part in a pretext that he was going to pray for her. Section 268 suggested.”
Part of the proceedings before the Chief Magistrate sitting in Jos on 22-1287 reads:
Comr. of Police
v
Ifeanyi Emeagwara
Accused:- Person in court speaks English
Pros:- Insp. J. Obanewo
D-Counsel:-Mr. J. E. Egemba for accused
F.I.R.:- Assault on woman with intent to outrage her modesty – S. 268 P.C.
Court:- Court particulars of the offence read and explained to the accused.
Accused: – I do understand the offence alleged. I have cause to show.

P.9

The allegation is a lie. I do not know the woman.
Court:- The accused denies the allegation.
Pros:- The case is not ready. I am not yet sure of the position of the case. The IPO is still in possession of the F.I.R. I apply for a date for mention.”
The above represent the proceedings in the Chief Magistrate’s Court, Jos, the First Information Report and the publication which formed the basis of the action leading to this appeal. The learned trial Judge after holding that the publication was a fair and accurate report of the judicial proceedings and therefore privileged, proceeded to award damages against the defendants in case his judgment was found to be erroneous by the Court of Appeal. The plaintiff was not satisfied and appealed to the Court of Appeal, Jos Division. The court below in dismissing the appeal held as follows:
“From all the above, I am of the view that the learned trial judge was right in holding that the defence of qualified privilege availed the respondents. They merely reported and published in their newspapers, a fair and accurate account of what took place in the court on 22-12-87 in the issue of the Daily Star of 18-1-88. Accordingly, the first issue formulated in the respondent’s brief which is the same as issues 1-3 formulated in the appellant’s brief are answered in the positive …”
Mr. Ofodile Okafor, SAN for the appellant submitted as follows at page 7 of the appellant’s brief:
“Privilege is attached to a fair and accurate report in a Newspaper of judicial proceedings. Material inaccuracies in a Newspaper report of judicial proceedings destroy a defence of qualified privilege since the fact that an occasion is privileged affords no panacea for publication of libellous imputations, unnecessary or irrelevant to the privileged occasion.”
The learned Senior Advocate of Nigeria pinpointed the various inaccuracies and distortions in the report. He relied on the following decided cases: Duyile v. Ogunbayo & Sons Ltd. (1988) 1NWLR CPt.72) 601; Atoyebi v. Odudu (1990) 6 NWLR cPt. 157) 384 and U.S.N. Ltd. v. Oredein & Ors. (1992) 6NWLR (Pt. 247) 355 at 362.
It was contended in the respondent’s brief that the publication as contained in Exhibits “1” and “1A” enjoyed the protection of the defence of qualified privilege and that malice was not proved. It was further submitted that the whole report was substantially an accurate report of what took place in the trial court and the fact that slight inaccuracies occurred is immaterial.

P.10

The court was referred to the case of Ryalls v. Leader (1866) L.R.I.. Exc. 296 at 230 and Clerk and Lindsell on Torts, 15th ed. paragraphs 20-133 and Gatley on Libel and Slander, 7th ed. paragraph 624 pp. 264 – 265. The courts below held that the report is a fair and accurate report of the proceedings before Mr. P. D. Damulak, Chief Magistrate sitting in the Chief Magistrate’s Court, Jos on 22-12-87 and that it was not actuated by malice. Some of the inaccuracies mentioned are that the complainant’s name was Mrs. Rose Otwanye and not Patricia Ogbonna, that the plaintiff was not described as a prophet in the proceedings of 22-12-87, that “Christ Bible Church” was not mentioned, that the plaintiff was never alleged to have rubbed the private parts of Patricia Ogbonna with oil before the cutting of her pubic hairs and finger nails and that the police prosecutor was Inspector J. Obanewo and not Sergeant Kujiral Audu. The courts below held that the inaccuracies are inconsequential and did not rob the respondents of the defence of qualified privilege in the absence of malice which the plaintiff alleged but did not prove. I am of the same view with the courts below. The inaccuracies are not relevant. No reasonable man could come to the opinion that they added anything to the substance of the report (Exhibits “1” and ‘1A’). The report need not be a verbatim one, it is enough if it is in substance, a fair account of what took place. A few slight omissions or inaccuracies are immaterial. I think that the courts below were justified in holding that the report is a fair and accurate account of what transpired in the Chief Magistrate Court.
In the case of Atoyebi v. Odudu (supra), this court held that a qualified privilege is an occasion where the person who makes the communication has an interest or duty, legal, social or moral to make it to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it. It is a rule of law founded upon principles of public policy and convenience that no action for libel can be maintained in respect of a report of judicial proceedings, taken before persons acting judicially in open court, where the reporting is a fair and accurate report of those proceedings and published without malice. See Kimber v. The Press Association (1983) 1Q.B. 65, Adam v. Ward (1917) A.C. 309 at 334 and Economides v. Thomopulos & Co. Ltd. (1956) 1 FSC 7 at 12; (1956) SCNLR 40. I am satisfied that the defendants/respondents satisfied the requirements of the law and are entitled to the defence of qualified privilege.
Newspapers and other publications which report what transpires in our courts are to a certain extent, privileged. They serve the cause of public justice on such occasions through their accounts of judicial proceedings but their privilege must be limited to occasions in which they publish fairly what passes in the courts.

P.11

The basis of the privilege lies not in the circumstances that the proceedings reported are judicial but that it is in the public interest that all such proceedings shall be fairly reported. Unless it is shown, not merely that the publication was a publication of what took place in a court of justice, but also, that it was a fair and accurate publication, the privilege does not arise. See R. v. Wright (1799) 8 T.R. 293 at 298 and Webb v. Times Pub. Co. Ltd. (1960) 2Q.B. 535. Issues (a) and (b) are therefore resolved against the appellant.
For these reasons and those adequately set out in the lead judgment by my learned brother Kalgo, JSC., I too dismiss the appeal. I abide by the order for costs contained in the lead judgment.

I had a preview of the judgment of my learned brother Kalgo, JSC just delivered before now and I agree with him that the appeal fails.
In adding a few comments of mine, I wish to say firstly that the facts of the case are not in dispute except the issues germane thereto and upon which arguments were agitated by the parties. Those issues are those upon which appellant’s complaints are:
“(a) Whether or not the publication in the Daily Star Newspaper of 18/1/88 is a fair and accurate report of judicial proceedings so as to avail the defendants of the defence of qualified privilege.
(b) Whether or not the publication was malicious having regard to all the circumstances of its publication and whether malice has been established.”
and the respondent’s lone issue proffered as arising for determination, to wit:-
“Whether in the circumstances of the case, the defence of qualified privilege was available to the respondents.”
Having carefully studied the above issues, I have come to the inevitable view that to adopt the two issues formulated at the instance of the appellant will suffice to dispose of the matter as follows:-
Issue No. (A)
After pin-pointing the Daily Star Publication of 18/1/88 vide Exhibit 1, and its certified true copy viz. Exhibit 1A, we were referred to page 19 of the record of proceedings (vide Exhibit 3.), adding that Exhibit 1 and 1A contained the following publication against the appellant:-
A Jos Chief Magistrate Court has heard that a Prophet with the “Christ Bible Mission”, Nassarawa -Gwom, Jos allegedly removed pubic hairs and finger nails of a lady adherent of the mission, in a pretext to pray for her with those materials”

P.12

As can be seen, malice was not proved by the appellant. The only attempt made by him to prove malice was in his testimony-in Chief wherein he said:
“In my view, the publication was borne out of malice. This is because such a matter was never before any court.”
Contrary to the above piece of evidence, the respondents tendered Exhibit 3 which showed that in fact, the appellant was arraigned before the court of the Chief Magistrate in Jos on 22/12/87 on First Information Report on an allegation of assault on a woman. The report, according to Exhibit 3, reads in part thus:-
“On the 14/12/87, at about 0800 hours, one Mrs. Rose Otwanye ‘F’ of No.8 Maichibi Street, Jos, came to ‘C’ Division Police Station Jos and reported that sometimes last year, 1986 between the months of May and June, one Prophet Ifeanyi O. Emeagwara (i.e. the appellant) invited her in a private room in the Church and started cutting hairs of her private part in a pretence that he was going to pray for her.”
As did indeed transpire, the report was read out in open court and the appellant denied the allegation. It is note-worthy to observe that the appellant also pleaded Exhibit 3 vide paragraph 8 of the statement of claim. The main difference between Exhibit 3 and the said publication was that the respondents gave the name of the complainant as “Miss Patricia Ogbonna” instead of “Mrs. Rose Otwanye”. In the absence of any evidence, as in the present case, that the mistake in the name of the complainant was borne out of malice or that the true identity of the complainant was material to the incident, I take the view that the error was not enough to deny the respondents of the defence of qualified privilege. In the words of Bramwell in the case of Ryalls v. Leader (1866) L.R. 1 Exch. 296 at 300.
“When once you establish that a court is a public court, a fair and bonafide report of all that passes there may be published. This view was referred to with approval by the learned authors, Clerk and Lindsell on Torts, 15th Edition at paragraph 20 – 133 at page 930 thus:
“Principal reason for the privilege is that those of the public who are unable to obtain admission through lack of accommodation have a right to know through the medium of reports all that took place in the hearing of those who obtained admission.”
This privilege which Black’s Law Dictionary, Sixth Edition defines as one defence to a prima facie case of defamation, is also referred to as conditional privilege in which interest the defendant is seeking to vindicate is conditioned upon publication in reasonable manner and for proper purpose vide Hahn v. Kotten 43 Ohio St. 2d. 273,331 N.E. 2d. 713, 717.

P.13

It is said to be granted on the ground of public policy. In effect, it ought to be borne in mind that the defence of qualified privilege can be destroyed by proof of express malice on the part of the defendants (respondents) – a burden which lies on the appellant (plaintiff). As stated earlier, in the instant, no evidence of malice was led at the trial. Thus, where a defendant’s statement is proved to be false and malicious, the defendants (respondents) cannot be entitled to the defence of privilege.
Amiekhai v. Okwilage (1962) 2 All NLR (Pts. 2-4) and Clark v. Molyneux (1877) 3 Q.B.D. 237. See also Economides v. Thomopulos (1956) IFSC 7 at 12; (1956) SCNLR 40 and N.T.A. v. Babatope (1996) 4 NWLR (Pt.440) 75. 
The few instances of inaccuracies in the report – Exhibit 1 were, as found by the learned trial Judge, to be “minor and do not disentitle the defendants (respondents) of the defence of qualified privilege.” CF Sketch Publishing Co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 1(0) 678.
It may be apt at this juncture to consider the said inaccuracies as found by the learned trial Judge as follows:-
(a) The appellant (plaintiff) was not described as a prophet in quotations: The fact that the appellant claims to be a prophet is indisputable. In his evidence-in-chief, he described himself thus “I am a prophet of God in Christ Bible Mission”. Further, during cross-examination, he said that “God made me a prophet.”
(b) Christ Bible Mission was never mentioned, let alone referred to in quotations. The appellant testifying as PW1 and his witness, Mrs Ifeoma Ezeani (PW3), gave evidence that the appellant is the founder and leader of the Christ Bible Mission.
(c) The complainant and victim of the alleged indecent assault was Mrs. Rose Otwanye and not Miss Patricia Ogbonna. I am therefore of the firm view that in the absence of evidence, that the variance in the name of the alleged victim of the assault and the one actually published in fact changed or aggravated the nature of the offence alleged, made the defence of qualified privilege to be still available to the respondents. It could at best be described as the printer’s devil without any mischief intended. On the contrary, the publication should be seen as making the alleged offence appear mild (if there is any such thing) for, it referred to a spinster instead of the real victim – a married woman.
(d) The plaintiff was never alleged to have rubbed the private parts of Patricia Ogbonna with oil before the cuttirig of her pubic hair and finger nails.

P.14

Although, it is pertinent to stress that no evidence was led at the trial that the appellant was alleged to have rubbed the private parts of the victim with oil before he cut the pubic hairs, there was evidence that he was alleged to have cut her pubic hairs after taking her to a private room in the church. The charge was not just read, but was also explained to the appellant in open court. (See page 2 of Exhibit 3).
I take judicial notice of the fact that not everything that is said in open court is recorded. For, as the court below indeed held – a view which I endorse:-
“It does not matter whether he rubbed oil on her pubic hairs before he began to shave off the hairs or not, the fundamental issue is whether the report as a whole is a fair representation of the allegations made against the appellant.”
In the light of the foregoing, my answer to issue 1 above is respectfully rendered in the positive.
Publications:
Coming to issue No. B. as to whether or not the publication was malicious having regard to all the circumstances and whether malice has been established, it will suffice to say that what was published did not change the nature of the alleged offence for the following reasons:-
(i) The police prosecutor was Inspector J. Obanewo and not Sergeant Kujiral Audu. Indeed, as earlier pointed out in respect of paragraph (c) in issue A above, in the absence of evidence to the contrary, this discrepancy is hardly of any moment.
(ii) There was no charge and the appellant did not plead not guilty to any charge but denied the allegation contained in the F.I.R. The respondents are only journalists and not lawyers and so can hardly be expected to be very familiar with legal terms as to the difference between an accused person “pleading not guilty” to a charge or “denying an allegation in a F.I.R.”
To the non-lawyer, both mean the same thing. In other words, to publish of a man that he pleaded not guilty to a charge in open court rather than saying that he denied a charge as contained in a F.I.R. when read to him in open court, has the same effect to the ordinary man in the street reading such a publication and is not defamatory or can be so ascribed.
Bearing in mind the above mentioned discrepancies and the comments thereon, I have no hesitation in arriving at the conclusion that the court below was right when it agreed with the trial court when it held as follows:-
” … The discrepancies are minor and are of no consequence and do not disentitle the respondents of the plea of qualified privilege.”

P.15

This is the moreso, as in the instant case, where the whole report is a substantially accurate account of what took place and the fact that there are a few slight inaccuracies therein which to my mind, are immaterial. According to the learned authors of Gatley on Libel and Slander, 7th Edition:
“A report in a daily newspaper is not to be judged by the same strict standard of accuracy as a report coming from the hand of a trained lawyer unless a fair and reasonable latitude is given; there should be no safety in reporting the proceedings in courts of justice. It would be impossible to exercise the privilege of reporting if every trifling in a report deprived it of privilege.”
In the case of N.T.A. v. Babatope (supra), the Court of Appeal held inter alia that qualified privilege is a defence to an untrue publication. However, it can only be claimed when the occasion of the publication is shown to be privileged. Where the publication is by broadcast as in the present case, the defendant should show that the broadcast is a fair information on a matter of public interest having an appropriate status and an appropriate subject matter; A publication is privileged where it is made with a view to giving public information on a matter of interest if it is the duty of the defendant to give it to the general public.
It is for the judge who is trying the case to determine whether the defendant was under a duty to make the communication. The judge is entitled to take the entire prevailing circumstances into account in reaching a decision.
Further on publication of libel, the law is well stated in Clerk and Lindsell on Torts, 15th Edition, Paragraph 20 – 48 at page 930 thus:
“Joint Publication” – The publication of libel may be a joint tort, as where in pursuance of common design one composes, another prints and another distributes a libel, or where a servant publishes a libel within the scope of his employment. “Where defamatory” matter is contained in a book, periodical, or newspaper, there are normally a series of publications each of which constitutes a separate tort. First, there is publication by the author to the publisher for which the author is solely liable. Secondly, there is the publication of the printed work to the trade and the public, for which the author, publisher and printer are jointly liable. It is normally in respect of this last publication that proceedings for libel are brought, although, it is open to the plaintiff to sue in respect of the separate publications set out above.”
In the instant case, I am inclined to the view and do humbly adopt and treat the “inaccuracies” as slight that do not deprive the report in Exhibit 1A of privilege. See the case of Obasuyi v. Ezeighu (1991) 3 NWLR (pt. 181) 585 at 596 which raised the question of the plaintiff delivering a reply (as herein), in order to show that the defendant’s claim of privilege is obviated by facts of their being actuated by express malice. See also Daily Times Nigeria Ltd. v; Emezuonwu (1990) 2 NWLR (pt. 132) 340, a case which dealt with the identity of the person to whom damages were awarded. See too Chief the Hon. Rotimi Williams and Others v. The West African Pilot (Consolidated Suits) (1961 )All NLR, 866 at 877, where it was held inter alia that:-

P.16

“The proper purpose of action for libel or slander is to vindicate the character of the person defamed and the proper party to bring the action is accordingly, the person actually and personally defamed. In other words, the identity of the person who claims to be defamed must be easily ascertainable.”
In an effort to persuade this court to arrive at the view that there were enough discrepancies between the judicial proceedings as contained on Exhibit 3 and as published by the respondents in Exhibit 1, the appellant in his Grounds of Appeal and in his Brief of Argument, for the first time, and without seeking this court’s permission or leave, introduced a new matter that was never before the two lower courts. For instance, in paragraph (d) of ground one of the appellant’s Grounds of Appeal, the appellant stated thus:-
(d) In the judicial proceedings, there was no allegation that candlestick and oil were inserted into the private part of the alleged victim as portrayed by the report.”
Throughout the proceedings in the trial court as well as in the court below, nothing was said to have been inserted into the private part of the alleged victim of the appellant’s alleged offence. As neither was mention made of candlestick in Exhibit 1 nor any other place in the proceedings, the fact that the appellant neither pleaded nor proved that fact; nor further still, that oil was said to have been rubbed but not inserted before the pubic hairs were shaved off, leads me to conclude that this was an attempt by the appellant to introduce these new sets of fact at this late stage, in an effort or a desperate attempt to sway the mind of this court to irrelevant matters.
This I will discountenance and refuse to do. Besides, the decisions of the two courts below are concurrent and I will in the absence of any perverse finding, decline to interfere therewith.
Issue (B) is accordingly answered in the negative.
It is for the above reasons and the fuller ones contained in the judgment of my learned brother Kalgo, JSC, a preview of which I had, that I too find no merit in this appeal. I therefore accordingly dismiss it and make a similar award of costs as contained in the leading judgment.

P.17

Plaintiff/appellant instituted this action in the Plateau State High Court, holden in Jos and claimed against the defendants/respondents the sum of N200,OOO.OO as aggravated or exemplary damages for libel published in the Daily Star Newspaper of 18th January, 1988. He also prayed for injunction to restrain the respondents from further publication of the aforesaid libel. The publication related to the appellant and the Christ Bible Mission, Jos founded by him. Both parties filed and exchanged pleadings. The crucial facts of libel alleged were contained in Exhibit 1, that is, the newspaper publication and as set out in respondent’s averment in paragraph 5 of the statement of claims; it reads:
“On the 18th day of January, 1988, the defendants falsely and maliciously wrote and printed and published on the back page of the issue of “Daily Star” dated that day of and concerning the plaintiff under the caption title “Prophet docked over indecent assault”, the words following that is to say:
“A Jos Chief Magistrate Court has heard that a Prophet with the “Christ Bible Mission”, Nassarawa-Gwom, Jos, allegedly removed pubic hairs and finger nails of a lady adherent of the Mission, in a pretext to pray for her with those materials”.
“The prophet, Ifeanyi Emeagwara, who is now standing trial before the court on a charge of indecent assault allegedly committed the offence between May and June last year, according to the prosecution …”.
The defendants/respondents answered the above in paragraphs 4 and 5 of their statement of defence as follows:
“4. The defendants admits (sic) the publication as contained in paragraph 5 of the statement of claim but aver that the publication was not false and malicious. The defendants aver that in so far as the said publication consists of allegation of fact, they are true in substance and in fact. In so far as it consists of expression of opinion, they are fair comments and made in good faith and without malice against the plaintiff.
5. In further answer to paragraph 5 of the statement of claim, the defendants aver that the publication was part of the proceedings in the Chief Magistrate Court Jos, which is privileged. The defendants will at the trial, rely on the said proceedings of the said case”.
After due trial, the learned trial Judge held that although the publication was defamatory, nevertheless being a fair and accurate report of judicial proceedings, the publication was privileged. He then dismissed the plaintiff’s claim. The trial Judge, after due consideration of the case on its merit, awarded N20,000.00 as damages should the appellate court disagree with him on whether the occasion of publication was privileged.

P.18

Dissatisfied, the plaintiff/appellant appealed to the Court of Appeal. That court unanimously dismissed the appeal having reached the conclusion that what was reported and set out in Exhibit 1 was substantially a fair and accurate account of what transpired in court and it accorded the defendant/respondent complete immunity in an action for libel. The lower court, like the trial court, was satisfied that the alleged inaccuracies were not of a substantial nature to rob the respondents of their qualified privilege.
Still undaunted, the appellant further appealed to this court. His learned counsel, Mr. Ofodile Okafor, SAN, submitted two issues for our determination, to wit:
(a) Whether or not the publication in the Daily Star Newspaper of 18/1/88 is a fair and accurate report of judicial proceedings so as to avail the defendants of the defence of qualified privilege.
(b) Whether or not the publication was malicious having regard to all the circumstances of its publication and whether malice has been established.”
The respondent in a brief filed by Sullivan Chime, Esq. but argued before us by Mr. P. I. Nwankwo-Ikwueto, identified a single issue for determination, namely,
“Whether in the circumstances of the case, defence of qualified privilege was available to the respondents.”
There is hardly much to choose between the two sets of issues for determination but I prefer the appellant’s because it is quite germane and indeed more comprehensive for effective disposal of the real question in controversy between the parties. To avoid undue repetition, both issues would be taken together.
A person may make a defamatory statement about another under circumstances where there exist a qualified privilege to make the statement provided the maker is not actuated by malice. The principle is that communications made in the discharge or performance of a duty (be it public or private duty) or made in the protection of lawful interest or fair and accurate reports in a newspaper of the public proceedings of any court of justice, whether superior or inferior, and whether courts of record or not. It will follow that this privilege will not avail a reporter if the proceedings take place in a court to which the public are not admitted or in a purely domestic tribunal. It has long been established that defence of qualified privilege will only avail a person where the report or publication is shown to be “fair and accurate”, that is to say that it is substantially accurate, without necessarily being exactly in word for word of what transpired. Mitchell Richards v. Hirst, Kidd & Rennie, Ltd. (1936)3 All ER 872 is manifestly illustrative as to what constitutes a valid plea of fair and accurate report. Here, the plaintiffs took a car from the premises of a hotel where it was kept and went on a ride before they were found by the Police.

P.19

The plaintiffs were charged (i) with theft and (ii) with having taken a car away without the owner’s consent, contrary to the Road Traffic Act, 1930, Section 28. At the Police court, charge of theft was withdrawn in open court, and both plaintiffs were convicted on the charge under the Road Traffic Act, 1930. The defendants published reports in their newspapers of the incident headed “stolen motor car” and “Motor car theft”. Richards was dismissed from his employment soon afterwards. Mitchell and Richards sued the owners and publishers of certain newspaper which published the Police court’s proceedings. The learned trial Judge accepted the evidence of the two reporters that they did not hear the withdrawal of the charge for theft due to their inattention. It followed that the reports were not fair and not accurate, even though it was not suggested that the reporters had malice at the time the publication was made. The two actions were consolidated under the relevant law.
The trial Judge held that the reports were inaccurate and the plea of qualified privilege could not avail the publishers and awarded 100pounds damages to Mitchell and 109pounds damages to Richards.
It must be noted also that for a report to be fair and accurate it must constitute a fair presentation of that which took place on the said occasion bearing in mind that the purpose of the defence of qualified privilege is to enable the public to be informed of proceedings of public interest. Indeed, a brief summary of the report is sufficient; See: Cook v. Alexander (1973) 3 All E.R. 103. In contrast, one should also look at the case of Blackshaw v. Lord (1983) 2 All E.R. 311 at 327 where Stephenson, L. J. opined that where damaging allegations or charges have been made and are still under investigation or have been authoritatively refuted, there can be no duty to report them to the public.
In order to determine the fairness and accuracy of the report complained about, it is necessary first to examine the report about which the complaint is made and compare it with what was stated by the court in its proceedings. We had earlier set out the plaintiff’s averment complained about. Let us now set out the content of what transpired in court as recorded by the presiding Chief Magistrate as the First Information Report (F.I.R.) and tendered in court as Exh.3 and compare it with what was actually published by the defendants. First Exhibit 3.

P.20

It runs as follows:
“Nature of information: Assault on a woman with intent to outrage her modesty:- On the 14/12/87, at about 0800 hrs, one Mrs. Rose Otwanye ‘F’ of No. 8 Maichibi Street, Jos came to ‘C’ Division Police Station, Jos, and reported that sometimes last year, 1986 between the months of May and June, one prophet Ifeanyi I. Emeagwara invited her in a private room in the Church and started cutting hairs of her private part in a pretext that he was going to pray for her – Section 268 suggested”.
Page 3 of the court’s record reads as follows:
“Court:- Particulars of the offence read and explained to accused.
Accused:- I do understand the offence alleged. I have cause to show. The allegation is a lie. I do not know the woman.
Court:- The accused denies the allegation”.
The content of the Daily Star newspaper report complained about was admitted in evidence at the trial as Exhibit 1 and reads as follows:
” ‘Prophet’ Docked over indecent assault
From
Obi Udefuna,
Jos.
A Jos Chief Magistrate Court has heard that a prophet with the “Christ Bible Mission”, Nassarrawa-Gwom, Jos, allegedly removed pubic hairs and finger nails of a lady adherent of the mission, in a pretext to pray for her with those materials.
The prophet, Ifeanyi Emeagwara, who is now standing trial before the court on a charge of indecent assault, allegedly committed the offence between May and June last year, according to the prosecution.
Said the prosecuting Police Officer, Sergeant Kujiral Audu: “the accused lured Miss Patricia Ogbonna into one of the rooms in the church, and began to rub her private parts with an oil. Consequently, the accused began to remove the hairs in the girl’s private region and later cut her finger nails”.
Thereafter, the prosecution told the court, Miss Patricia Ogbonna of No.8, Maichibi Street, Jos, reported the matter to the police. Ifeanyi pleaded not guilty and the Magistrate, Mr. Pius Damulak, adjourned for further hearing”.
Learned counsel for the plaintiff/appellant Mr. Ofodile Okafor, SAN, identified the following as what he headed as inaccuracies, looking at Exhibits 1 and 3.
“(a) The plaintiff was not described as a prophet in quotation.
(b) Christ Bible Mission was never mentioned let alone referred to in quotation.

P.21

(c) The complainant and the victim of the alleged indecent assault is one Mrs. Rose Otwanye and not Miss Patricia Ogbonna.
(d) The plaintiff was never alleged to have rubbed the private part of Patricia with oil before cutting her pubic hair and finger nails.
(e) The police prosecutor was Inspector J. J.Obanewo and not Sergeant Kujiral Audu.
(f) There was no charge and the plaintiff did not plead guilty to any charge but denied the allegation in the F.I.R.”
As earlier noted, both the trial court and the Court of Appeal held that the defence of qualified privilege availed the defendants/respondents. Appellant’s learned counsel submitted that the inaccuracies were sufficient to destroy the defence of qualified privilege while it was submitted in respondent’s brief by his learned counsel, S. Chime Esq. that the discrepancies between Exhibits 1 and 3 were not enough to destroy the respondent’s defence of qualified privilege.
I have closely examined Exhibits I and 3. I am quite satisfied that there are some discrepancies between the contents of Exhibits 1 and 3. I have also identified some discrepancies between the two exhibits. I shall take them seriatim.
1. The plaintiff was never described as a prophet. But in his evidence in-chief, he described himself so: “I am a prophet of God in Christ Bible Mission” and further testified that “God made me a prophet”.
2. Christ Bible Mission was never mentioned in Exhibit 3. This may well be true but PW 3- Mrs. Ifeoma Ezeani – testified that the appellant was the founder and leader of the Christ Bible Mission.
3. There is discrepancy that the victim of indecent assault was Mrs. Rose Otwanye and not Miss Patricia Ogbonna. There was no evidence to establish that the variance in the name of the alleged victim of the indecent assault and the one actually published in fact made a difference to the offence alleged or aggravated it or affected the defendants’ defence of qualified privilege, Exhibit 1 referred to Miss Patricia Ogbonna – a spinster – while Exhibit 3 referred to Rose Otwanye a married woman. It seems to me the error in the victim of the assault in terms of being a spinster or a married person is inconsequential. Perhaps, the error in terms of the victim of the assault would have become substantial if the one identified the victim as a Miss X while the other stated a Mr. X. This would have been fundamental inaccuracy as the reference to a Mr. X as the victim has the far reaching effect, or at any rate, the implication that the plaintiff was a gay personality, i.e. a homosexual. But this is clearly not the position.

P.22

4. It was never alleged that plaintiff rubbed the private parts of the victim with oil before the cutting of the pubic hairs and before cutting her nails, I think the crucial issue was that the appellant cut the pubic hairs of the victim and it seems immaterial whether there was any rubbing of the pubic hairs with oil or water before the cutting.
   5. Again there was discrepancy as regards whether the Police prosecutor was Inspector J, Obanewo and not Sergeant Kujiral Audu. Surely, this cannot make any difference whatsoever. It is at best a storm in a teacup and ought to be ignored.
   6. There was no charge and the plaintiff did not plead ‘guilty’ or ‘not guilty’ to any charge but denied the allegation in the F.l.R. Procedure by F.I.R. wherein the allegation was denied rather than the formal plea of not guilty are rather technical in nature and the distinction may not be easily appreciated by ordinary non-legally oriented people in society. Be that as it may, this did not affect the offence alleged against the plaintiff which in essence was an offence of indecent assault.
   The above have shown the alleged discrepancies. The real issue is whether the report by the reporter was essentially reasonably correct and accurate. If the answer is in the affirmative, the defence inures to the reporter but if in the negative, the plea of qualified privilege is lost. Gatley on Libel and Slander (7th ed.) has cautioned in paragraph 624 pp. 264 to 365 as follows:-
   “A report in a daily newspaper is not to be judged by the same strict standard of accuracy as a report coming from the hand of a trained lawyer. Unless a fair and reasonable latitude is given, there would be no safety in reporting the proceedings in courts of justice. It would be impossible to exercise the privilege of reporting if every trifling slip in a report deprived it of privilege.”
   From my scrutiny of Exhibits 1 and 3, the question I am bound to ask myself is whether the publication complained about is substantially a fair and accurate report of what transpired in the Chief Magistrate’s Court, Jos on that fateful day in respect of the charge of indecent assault on a female? Thus, whether it was included in the report complained about that the plaintiff “shaved”, “plucked” “pulled” or “cut” the victim’s pubic hairs would hardly make any difference to my mind in regard to the method adopted by the plaintiff in the removal of the pubic hairs. Furthermore, and like in the instant situation, whether the defendant-reporter stated that some oil, water or any liquid, for that matter, was applied to the pubic hairs before their removal would be of no moment so long as the pubic hairs were in fact removed.

P.23

My unequivocal answer is in the affirmative, more so as no evidence had been proved to the satisfaction of the trial court, or the lower court or even demonstrated to us that the report was actuated even by the flimsiest notion of malice, which no doubt, would have gone a long way to destroy the plea of qualified privilege. See Atoyebi v. Odudu (1990) 6 NWLR (Pt. 157) 384 and Groom v. Crocker (1939) 1 KB 194.
All in all, therefore, I have not been persuaded that the appeal has any merit. Accordingly, I entirely agree with the leading judgment of my learned brother, Kalgo, JSC that this appeal deserves to fail and I hereby dismiss it with N10,000.00 costs in favour of the respondents.

Appeal dismissed.

P.24